My husband passed away intestate. He has a property in his name. We have a son who is not married. Is there a way I can transfer this property in our son’s name?
Since your husband died intestate (i.e., without making a Will), the manner in which his estate would devolve would depend upon the personal law by which your husband was governed by at the time of his death. This would affect both the determination of the legal heirs of a deceased as also the specific share which each of the legal heirs would become entitled to in the estate on the deceased.
It is assumed that according to the personal law by which your husband was governed, you and your son are the only legal heirs to his estate. Accordingly upon your husband’s demise his estate has devolved upon you and your son absolutely.
It is further assumed that your intention is to transfer your share in the property (which has devolved upon you) to your son by way of a gift (i.e., without your son paying to you any consideration for the relinquishment of your rights in the property in his favour).
You can gift your share in the property to your son by executing a gift deed pursuant to which you will transfer or relinquish your share in the property in favour of your son. A gift deed allows one to gift his or her assets or transfer ownership or interest without any exchange of money or other assets.
The gift should be in accordance with sections 122 and 123 of the Transfer of Property Act, 1882, and must be effected by a stamped and registered instrument executed by you, accepted by your son during your lifetime and attested by at least two witnesses. The stamp duty and registration charges, which would have to be paid on the deed of gift, would differ across states and have to be paid as per the relevant laws of the state where the property is situated.
If the property is a flat in a co-operative housing society, then the change should be reflected in the share certificate issued in respect of the flat by the housing society.
In order to perfect your and your son’s title to the property (which has been inherited by both of you by way of transmission upon the death of your husband), you may need to apply for letters of administration before a court of competent jurisdiction. This establishes both your titles as the heirs to immovable property acquired on intestate succession.
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